Justices PB Suresh Kumar and CS Sudha of the Kerala High Court ruled that applications for anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) are not permissible when the offenses fall under the purview of the Unlawful Activities (Prevention) Act (UAPA).
The High Court made it clear that the UAPA’s provision, which prohibits the grant of anticipatory bail, is absolute and without exceptions.
The reasoning behind this decision was that allowing anticipatory bail in UAPA cases would lead to an illogical situation where the accused could obtain anticipatory parole without any conditions, while regular bail would be subject to conditions.
The Court also emphasized that seeking anticipatory bail is not a fundamental right under Article 21 of the Constitution. Considering the impact of international terrorism on society and the UAPA’s aim to prevent and combat terrorist activities, the Court concluded that Section 438 of the CrPC was intentionally excluded from offenses punishable under the UAPA.
The case that prompted this ruling was related to the infamous 2020 gold smuggling incident, where substantial amounts of gold were smuggled from the UAE through diplomatic channels, with P Sarith and Swapna Suresh as the main suspects.
The appellant in the case had filed an application for anticipatory bail before a special court established under the National Investigation Agency Act (NIA Act). However, the special court denied the request, leading to the appeal in the High Court.
During the proceedings, the appellant’s counsel argued that the act of gold smuggling in this case was solely for profit and not to threaten the economic security of the nation, as required under the UAPA.
The Deputy Solicitor General of India (DSGI) countered this argument by pointing out that Section 43(D)(4) of the UAPA expressly excludes the applicability of Section 438 of the CrPC in cases involving UAPA charges.
The Court carefully reviewed the relevant provisions of the UAPA, including Section 43(D)(4), which disallows anticipatory bail and sets out conditions for regular bail. It concluded that the UAPA was enacted to combat terrorism in line with United Nations resolutions.
As the final report in the case had not been filed, and evasion of arrest was a reason for the delay, the Court found no error on the part of the NIA in seeking the appellant’s detention for interrogation.
Ultimately, the High Court dismissed the appeal, stating that this was not an exceptional case warranting pre-arrest bail, particularly for an offense punishable under the UAPA.
